TDD files motion to dismiss city's appeal

Monday

Apr 22, 2013 at 12:01 AMApr 22, 2013 at 11:57 PM

The Neosho Transportation Development District filed a motion Friday asking the court to dismiss the City of Neosho's appeal of Judge Kevin Selby's November court ruling that struck down their challenge of the TDD.

Whitney Saporito

The Neosho Transportation Development District filed a motion Friday asking the court to dismiss the City of Neosho's appeal of Judge Kevin Selby's November court ruling that struck down their challenge of the TDD.

The TDD's motion to dismiss appeal came within days of the city's latest move in the appeal process, when they filed electronic transcripts of the November court hearing.

The city filed a petition in August 2012 challenging the validity of the TDD based on the state statute it was formed under paired with who acts as the voters within the district.

While the TDD maintains their validity, and Judge Selby ruled against the city's challenge in a Nov. 30 hearing, the city has moved forward with appealing that decision.

A notice of appeal was filed by the city on Jan. 17, followed by the transcripts last week.

Neosho Mayor Richard Davidson said Saturday that filing the electronic transcripts by the Thursday deadline allows the city an additional 60 days to consider moving forward with the appeal.

Steve Hays, Neosho city attorney, said the next step for the city would be to file the appellate brief.

"In that brief we will argue why the decision by Judge Selby was incorrect," Hays said. "The process is in motion but the appellate brief has not been filed. It would be a substantial step into the appeal itself."

He said if the city council decides to move forward with filing the brief, the court would then allow the TDD to respond with their own brief. He said the case would then likely move on to oral arguments before the three appellate judges, after which a decision would be rendered.

Meanwhile, the TDD's motion for the court to dismiss the appeal was denied on Monday, when the Southern District court of appeals ruled that the TDD's motions to dismiss appeal would be taken with the case. "I would certainly say that weighs in the city's favor," Hays said.

The TDD's motion to dismiss lists three reasons they believe the city's appeal should not be heard.

The motion, submitted by the TDD's attorneys at Yates, Mauck, Bohrer, Elliff and Fels, P.C., attorney Mark C. Fels and T. Chris Williams of Williams and Campo, P.C., states that the city lacks standing to appeal because it is not aggrieved.

"It cannot be emphasized enough that the City specifically requested and was granted all of the relief of which it belatedly complained in its Motion to Set Aside," the motion states.

In addition, the motion states that the city is estopped from challenging the trial court's judgments.

"Whether or not the City was correct in asserting in its Motion to Set Aside that the NTDD was not formed in accordance with the TDD Act was immaterial to the trial court's December 12, 2012 judgment and is immaterial to this appeal," the motion reads.

Finally, the motion highlights the importance of the proposed TDD projects to the community as the third reason the city's appeal should be dismissed.

"Because of the importance to the public of the transportation projects for which the NTDD was created, the city's appeal should be dismissed without delay," it reads.

"The City's Motion to Set Aside and now its appeal from the trial court's adverse judgment have cast a pall of uncertainty over the completion of the transportation projects for which the NTDD was established."TDD Board Chairman Ray Stipp could not be reached for comment on Monday.

Steve Roark, TDD board member, said he could not comment on the current events in the case as he had been out of town, though he did note that he expects the TDD to issue a public statement in the coming days.

The TDD was established in February 2012, and stretches from Waldo Hatler Drive to Industrial Drive, and from Kodiak Road to just east of Laramie Lane.

A half-cent sales tax has been collected within the district's borders since Jan. 1, 2012 and sunsets after 20 years.

There are approximately $6.9 million worth of road improvement projects planned for the district, with $2.4 million of that coming from a cost share agreement with the Missouri Department of Transportation.